WORLD TRADE  
ORGANIZATION  TN/RL/GEN/53 
1 July 2005 
 (05-2862) 
Negotiating Group on Rules Original:   English 
  
 
FURTHER SUBMISSION ON PUBLIC INTEREST
1  
 
Communication from Hong Kong, China;  Israel;  Japan;  Korea, Rep. of; Norway ; 
Singapore;  Switzerland;  the Separate  Customs Territory of Taiwan, Penghu,  
Kinmen and Matsu;  and Thailand  
 
  The following communication, dated 30 June 2005,  is being circulated at the request of the 
Delegations of Hong Kong, China;  Isra el;  Japan;  Korea, Rep. of; Norway;   Singapore;  Switzerland;  
the Separate Customs Territory of Taiwan, Penghu, Kinmen and Matsu;  and Thailand. 
 
 The submitting delegations have requested that this paper, which was submitted to the Rules 
Negotiating Group as an informal document (JOB(05)/ 136), also be circulated as a formal document. 
 
_______________ 
 A. INTRODUCTION 
  In TN/RL/W/174/Rev.1, the co-sponsors propose the inclusion of a public interest provision in the Anti-dumping Agreement for an importing Memb er to take the effects of an anti-dumping 
measure on other sectors of its economy into c onsideration before applying the measure. 
 
As our previous paper observes, anti-dumping measures affect the trade flow between the 
importing Member and the Members where the subject products originate or pass through.  Within the 
domestic context, the effects of an anti-dumping meas ure are not confined to the domestic industry of 
the importing Member, but spread to other economic sectors.  The consequences for those sectors can 
be quite serious.    
 The Anti-dumping Agreement currently does no t provide for the effects of an anti-dumping 
measure to be taken into consider ation before an anti-dumping measure is applied, nor does it provide 
opportunities for relevant parties to comment on the economic consequences that the measure may 
entail.  Thus, we propose in TN/RL/W/174/Rev.1 the inclusion of provisions in the Agreement to provide for the effects of an anti-dumping measure to be taken into account before an anti-dumping 
measure is imposed.   
 
This paper builds on the four key elements id entified in our previous paper and proposes a 
new Article (see Section B. below) to be added to  the Anti-dumping Agreement.   In developing our 
proposal, our objective is to address a specific problem  in the current system, namely the absence of 
provisions to ensure that the effects of an anti- dumping measure would be taken into account before 
applying the measure.  This in turn stems from the lack of any mechanism to give those persons who 
                                                     
 
1 The proposal contained in this document does not represent a final position and may be subject to 
further addition and/or modification in the course of the negotiations.  Other provisions of the Anti-dumping 
Agreement that may be affected by the proposal may be examined in the later stages of the negotiations when 
Members have a more comprehensive picture of the amended Agreement. TN/RL/GEN/53 
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 may be affected by an anti-dumping measure oppor tunities to comment on the matter.  The main 
focus of our proposal is therefore to provide su ch persons with opportunities to express their views 
and to have them considered before an anti-dumpi ng measure is applied.  Our proposal does not seek 
to prescribe what is or is not in the importing Me mber’s "economic interest" and leaves this to be 
decided by the importing Member
2.  
 
B. TEXTUAL PROPOSAL 
 
Article [x]   Public Interest  
[x.1]  Before applying a definitive anti-dumping measure3, authorities shall provide full opportunity 
for persons who may be affected by the measure to comment on the matter.  To this end, authorities 
shall give public notice and separate notifications4 to known relevant persons5, and shall give relevant 
persons at least [  ] days to comment6 as referred to in paragraph 2 below.   
 [x.2] Relevant persons may comment on, inter alia , possible effects of the anti-dumping measure 
on the following: 
 
(i) costs for the industrial users, consumers, importers, wholesalers and retailers of the 
product under consideration;  
(ii) competition in the market of the product under considera tion in the importing 
member;   
(iii) choice or availability of like products at competitive prices for industrial users and 
consumers; 
(iv) profitability and competitiveness of industrial users, importers, wholesalers and 
retailers of the product under consideration. 
 
[x.3] Opportunity to comment under paragraph 1 sh all be provided at the earliest opportunity when 
relevant persons are able to provide meaningf ul comments.  Where opportunity to comment is 
provided before the details of the proposed defi nitive anti-dumping measure (including the reasons for 
the dumping and injury determinations) are known, then  relevant persons shall be given [  ] days to 
supplement the comments originally prov ided after such details are known. 
 
[x.4] For the purposes of this Article, relevant pe rsons who are not already interested parties shall 
also enjoy the rights of interested parties under pa ragraph 1 (except 1.1 and 1.3), paragraphs 2 to 5
7 
and paragraphs 98 and 13 of Article 6. 
 
                                                      
2 Moreover, while our proposal focuses on the right for affected persons to comment on the economic 
effects of an anti-dumping measure, it does not preclude Members from taking other non-economic 
considerations into account in deciding not to apply an anti-dumping measure.   
3 Editorial note - reference is made to proposals regarding the mandatory application of lesser duty.  
4 Including by electronic means. 
5 For the purpose of this Article, the term "relevant pe rsons" refers to interested parties, wholesalers, 
retailers, industrial users and, where the product is comm only sold at the retail level, representative consumer 
organizations.  Where the number of traders/producers involved is particularly high, separate notification may 
instead be provided only to the relevant trade associa tions or to the authorities of the exporting Member (in the 
case of exporters). 
6 Including providing information and views. 
7 Access to information under Article 6.4 shall not be limited to information obtained pursuant to this 
Article.  
8 Editorial note: Article 6.9 requires disclosure prior to "final determination". In the context of this 
Article, it means before the member draws its conclusion under paragraph 5 of this Article.     TN/RL/GEN/53 
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 [x.5]   Comments received pursuant to this Article  shall be taken into due  consideration by the 
authorities in an objective and unbiased evaluation.  Where no information is received or information 
received is considered incomplete, authorities shall take into account best information available from 
public sources if such information is already in th eir possession or is reasonably obtainable by them.  
If thereafter the importing Member concludes that it is not in its economic interest to impose the 
definitive anti-dumping measure, the measure shall not be imposed.9 
 
C. EXPLANATION 
  Paragraph [x.1]  of our proposal lays down the principl e that persons who may be affected by 
an anti-dumping measure should be given opportunity to express their views before the measure is 
imposed.  We set out some basic procedural requirements, namely the provision of notice and a minimum period for "relevant persons" to comment.   "Relevant persons" is defined in footnote 5.  Importers, wholesalers and retailers as traders of 
the product and industrial users or  consumers as purchasers, have a direct economic link with the 
product under investigation, and are most closely af fected by the measure.  So they are specifically 
identified as "relevant persons".  Interested partie s (e.g. domestic industry, foreign exporters), being 
parties to the anti-dumping investigation, should also  have the right to comment.  So they are also 
included as "relevant persons".          
 While our proposal requires "relevant persons " to be given opportunity to comment, it does 
not prevent Members from extending these rights to ot her categories of persons, and indeed to the 
public at large, under their own domestic law.     Paragraph [x.2]  sets out a non-exhaustive list of fact ors on which relevant persons may 
provide comments.  Such a list can provide useful guidance to relevant persons in preparing their 
comments.  Briefly:   
• Sub-paragraph (i) concerns the possible effe cts of a proposed anti-dumping measure on the 
cost to the purchasers, which is one of the most obvious effects that imposition of an anti-
dumping measure is likely to have.   
• Sub-paragraph (ii) concerns the possible effects of a measure on competition  in the importing 
Member’s market.  For example, the imposition of  an anti-dumping duty, particularly one at a 
high level, may practically oust the exporters  from the market, creating or reinforcing a 
market dominant position.  Consumers are partic ularly vulnerable to future price increases 
and supply problems under such cases.   
• Sub-paragraph (iii) concerns the possible effects of a measure on the choice or availability  of 
goods.  For example, the imposition of an anti-dumping measure may reduce or eliminate the choice or range of products in the market.  It may also lead to the problem of irregular or 
short supply. 
• Sub-paragraph (iv) concerns the effects of a measure on profitability  and competitiveness  of 
the industrial users and traders. For example, the industrial user’s production output may be 
adversely affected due to increased cost of pr oduction, reduced choice or availability of inputs 
and reduced access to technology.  Increased cost, declined sales/production output could 
have an adverse impact on the prof itability and competitiveness of downstream 
producers/traders, and leading to downsizi ng, closures or relocation of operations. 
                                                     
 
9 Editorial note: in TN/RL/W/174/Rev.1, the FANs have suggested that an anti-dumping measure 
should not be applied, or should be mitigated, if the application of the measure is not in the overall economic 
interest of that Member.  The co-sponsors are open to exploring the option of "mitigation" as a means to provide more flexibility to the importing Member in the public interest test, without undermining the basic 
principle that a measure should not be imposed if it is not in the economic interest of that member.   TN/RL/GEN/53 
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Paragraph [x.3]  sets out the basic principle that opportunity to comment should be provided 
at the earliest opportunity when me aningful comments can be provided
10.  We are open to discussing 
a more detailed procedural rule as Members may co nsider useful.  In any event, from a due process 
point of view, if opportunity to comment is provided at an earlier stage of the investigation, before the 
details of the proposed definitive measure are known,  relevant persons should be given some time to 
supplement their previous comments when such details are known.     
In order that the right to comment can meaningful ly be exercised, relevant persons need to be 
given certain procedural and due process rights.  Paragraph [x.4]  thus provides for relevant persons 
who are not interested parties to also enjoy the ri ghts of interested parties under Articles 6.1 (except 
6.1.1 and 6.1.3), 6.2 to 6.5, 6.9 and 6.13 for the purpose of the public interest provision.  These rights are: 
 - ample opportunity to present information, and access to evidence presented by other 
parties (Art 6.1, excluding Art 6.1.1 and 6.1.3) 
- full opportunity to defend their interests (Art 6.2) 
- treatment of oral information (Art 6.3) 
- access to non-confidential information (Art 6.4)
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- treatment of confidential information (Art 6.5) 
- final disclosure (Art 6.9)  
- assistance to interested parties, especi ally small companies (Art  6.13) 
 Paragraph [x.5]  provides that comments received from re levant persons shoul d be taken into 
due consideration by the authorities, and the evaluation of comments by authorities should be 
objective and unbiased.    Where no or incomplete in formation is received, then consistent with good 
administrative practice, authorities should take in to account best information available from public 
sources where such information is already in thei r possession or is reasonably obtainable by them.  
However, as indicated above, our proposal leaves a Member to draw its own conclusion as to whether 
the imposition of the proposed measure is in its economic interest.   
 
D. RELATED ISSUES  
Transparency : Consistent with the principle of transparency and due process, details 
pertaining to the assessment of public interest s hould be disclosed to the public in notices published 
under Article 12.  This would include details of  information and views received and evaluated, 
relevant findings and reasoned conc lusion.  Detailed drafting of these provisions may be considered 
together with other proposed improvements to Article 12. 
 
 Application to Article 11 reviews: In principle, opportunity to comment on the effects of an 
anti-dumping measure should be provided when the importing Member reviews the continued 
application of an anti-dumping meas ure under Article 11, unless the review is limited to a review of 
the dumping margin without involving an examination of injury.  The co-sponsors reserve the right to 
revisit this issue and to make a proposal on this in future. 
__________ 
                                                     
 
10 Meaningful comments may be provided if, for example, relevant persons have a fair idea of the 
likely level of the anti-dumping measure to be imposed an d/or the possible effects that the measure may have on 
them e.g. after an affirmative preliminary dumping determin ation or after provisional measures are imposed.      
11 Our proposal provides that access to information by relevant persons is not limited to information 
obtained pursuant to the public intere st Article: access to other information pe rtaining to the investigation could 
be useful to relevant persons in enabling them to provide meaningful comments for the purpose of public 
interest.